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TMI Blog2013 (8) TMI 227X X X X Extracts X X X X X X X X Extracts X X X X ..... emand has been made by the Assistant Commissioner of Central Excise, Madurai, the above mentioned respondent. Aggrieved by that, the appellant filed an appeal before the Commissioner (Appeals). The said Commissioner (Appeals) dismissed the appeal and confirmed the order of the Assistant Commissioner of Central Excise, Madurai. Aggrieved by that, the appellant filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal ("CESTAT" in short) in No. E/141/2009. Further, there was a demand by the respondent for a sum of Rs. 4,61,679/- against which the appellant filed an appeal before the First Appellate Authority, who confirmed the order of the Assistant Commissioner of Central Excise. Aggrieved by the same, the appellant filed a further appeal before the CESTAT in No. E/559/2009. Along with the appeals, the appellant also preferred stay petitions for waiver of pre-deposit of duty. The CESTAT, by order dated 20-4-2009 and 18-1-2010 granted waiver of pre-deposit and also granted stay on the ground that the appellant had already paid a sum of Rs. 43,00,000/- on account to the Revenue, way back in the year 1991. It is also stated that the interest generated over the years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability of the rebate, the respondent adjusted the said rebate amount due to the appellant, against the demanded amount. Aggrieved by that, the appellant filed the writ petitions. After hearing the arguments advanced on the side of the appellant as well as the Revenue, the learned single Judge disposed of the writ petitions with an observation that there are disputed questions of fact involved in the writ petitions, and directed the appellants to approach the CESTAT for extension of stay in accordance with law. Aggrieved over the same, the appellant has filed the present writ appeals. 3. Learned counsel for the appellant vehemently contended that all along the appellant got stay orders whenever there was functioning of the CESTAT and only since there is no sitting of the CESTAT due to administrative reasons, the appellant is unable to get extension of stay and the same was also brought to the notice of the respondent. Further the counsel relied on the Apex Court judgment in the case of Commissioner of Customs & Central Excise, Ahmedabad v. Kumar Cotton Mills Pvt. Ltd., cited supra, and also relied on the Circular dated 26-5-2010 issued by the Central Board of Excise & Customs, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that there is no sitting of the CESTAT due to administrative reasons and also, there is no dispute that the appellant filed petition for extension of stay and the same is still pending. Learned counsel for the appellant relied on Circular No. 925/15/2010-CX., dated 26-5-2010 issued by the Central Board of Excise & Customs, which considered the scope regarding extension of stay. The relevant portion of the said Circular reads as follows :- "2. The above mentioned provision, brought in to effect from 11-5-2002, was examined by the Tribunal as well as the Supreme Court, in the case of IPCL v CCE, Vadodara - 2004 (169) E.L.T. 267 (Tri.-LB), it was held by the Tribunal that the Tribunal has the powers to grant extension of stay beyond 180 days. In the case of Kumar Cotton Mills (P) Ltd. v. Commissioner CCE, Ahmedabad-I, 2002 (146) E.L.T. 438 the Tribunal held that, in case of stay orders passed prior to 11-5-2002, the same would be valid till the disposal of the appeal and such stay would not be hit by the second proviso to Section 35C(2A). Further, where the order is made after 11-5-2002, the Tribunal's powers to continue protection so given cannot be circumscribed and the Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CESTAT, and the said Circular is binding on the Revenue. It is well settled principle that whenever a Circular is issued by the Central Board of Excise & Customs, the same is binding on the Revenue. Further there is no sitting of the Tribunal due to unavoidable circumstances, which cannot be attributable to the appellant. Also, the Circular and the judgment of the Apex Court relied on by the counsel for the appellant, are squarely applicable to the case on hand, in favour of the appellant. 6. Under the circumstances, we are of the view that no proper opportunity has been given to the appellant. Further there was no sitting of the Tribunal during the period, and there is no dispute regarding the same. We cannot expect the appellant to perform an impossible task. Also, the Revenue had granted stay earlier after taking into consideration that the appellant had already deposited a sum of Rs. 43,00,000/- in the year 1991. So, taking into consideration of all these factors, we are of the view that the respondent has acted hastily and adjusted the amount without affording proper opportunity to the appellant. Under the circumstances, there is clear violation of the principles of natural ..... X X X X Extracts X X X X X X X X Extracts X X X X
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